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In “Alice in Wonderland,” the Queen of Hearts once proclaimed, “Why, sometimes I’ve believed as many as six impossible things before breakfast.” This appears to be the rallying cry of many plaintiffs across the country when they file administrative charges and lawsuits. They continue to name individual supervisors and human resources directors as individual defendants despite case law that generally holds individuals cannot be found liable under some of the most common federal employment discrimination laws: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
Unfortunately, the clear language in case law supporting the dismissal of individuals has not prevented plaintiffs from bringing claims under these statutes. A federal court judge in Oregon recently outlined this costly and questionable practice in his dismissal opinion in a case involving Starbucks, stating:
[Plaintiff’s] attorneys regularly file suit in state court for violations of these [discrimination] statutes against individual employees, knowing that they likely will be defended and indemnified by the employer, for the ostensible purpose of educating and deterring them from unlawful behavior. This court fails to see any need to file a lawsuit to deter such unlawful behavior. Even if employees are not sued individually, their employer surely will take appropriate action to deter any future behavior. [Plaintiff’s] attorneys also admitted that as a matter of course they sue employees prior to engaging in discovery and obtaining any evidence as to how complicit the employees may have been in the alleged discrimination or retaliation. Instead, they appear to presume that any employee who questions the plaintiff’s work performance should be sued.
Being named in a lawsuit puts individuals in a terrible position of having to personally defend themselves. Even if they are able to eventually get dismissed from the complaint, they do not come out unscathed—they often get stuck paying defense costs and are usually subjected to the invasive discovery process.
This shotgun approach to employment litigation establishes that plaintiff take the Cheshire Cat’s words to heart, in pursuit of money: “If you don’t know where you are going, any road can take you there.”
Federal And State Laws That Permit Individual Liability
The frightening aspect of this trend is that those roads do sometimes lead plaintiffs to a place where they can recover from supervisors, managers, and HR directors. At the state level, New Jersey, New York, Massachusetts, Connecticut, Ohio, Oregon, Pennsylvania, and Washington are among the states that allow plaintiffs to bring claims against individuals under the theory that they “aided and abetted” discrimination or harassment. And California allows plaintiffs to bring claims against individuals for harassment. Likewise, many states allow plaintiffs to bring claims against individuals who “retaliate” against them for engaging in protected activity. These types of laws will continue to sweep across the country as the states that have enacted them are generally at the forefront of employee rights.
At the federal level, individuals are regularly found personally liable for violations of the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), Section 1981 of the Civil Rights Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Employee Retirement Income Security Act (ERISA), and the Immigration Reform and Control Act (IRCA).
For instance, a 2017 case out of the Eastern District of Pennsylvania recently held that an HR director may be individually liable for FMLA and wage violations. In Edelman v. Source Healthcare Analytics, LLC, the court determined that there is individual liability under the statute because it defines an “employer” to include “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” The court next found the HR director acted in the interest of the employer when she terminated plaintiff.
The court reasoned that the HR director is subject to personal liability under the FMLA because she exerted control over plaintiff’s specific leave and because she terminated her. Using this same reasoning, it appears that the court would have likely reached this same conclusion if it was a manager, or perhaps even a general counsel, who advised the plaintiff of her FMLA rights and subsequently terminated the plaintiff’s employment.
An even more recent case out of the Eastern District of Pennsylvania denied a defendant’s request to have a race discrimination claim against the individual supervisor dismissed. In a 2018 case against a trucking company, the plaintiff made four different attempts to sue a former supervisor. The fourth time was the charm, as the court recently concluded that the plaintiff pled the bare minimum for his race discrimination claim to survive against the supervisor under § 1981.
Interestingly, the only allegation relating to possible race-based discrimination was plaintiff’s allegation that the supervisor ordered him “to go home early” and “leave work until his next scheduled shift.” The supervisor allegedly made this demand upon learning about plaintiff’s report to another employee of disparate treatment between Caucasian and African-American employees.
This case should serve as a cautionary tale to all HR directors, managers, and supervisors as there were no other allegations of race-based discrimination against the individual supervisor. In fact, there were no allegations that the supervisor had any involvement in the decision to terminate the plaintiff. Further, there were no allegations that the supervisor played a role in the union’s investigation and hearing. The court simply concluded the supervisor’s decision to send the plaintiff home was enough to survive a motion to dismiss.
Managers, HR directors, and supervisors should heed the Queen of Hearts’ recommendations when considering what steps to take to protect themselves and their company: “It takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”
To better protect yourself and the company, you should ensure your employee handbook accurately reflects the ever-changing laws related to protected classes and all forms of harassment. Second, you should schedule annual harassment and discrimination trainings with managers and non-managers. These trainings will act as a defense in the event of a discrimination or harassment lawsuit. Also, the trainings will put employees on notice that they may be personally liable for violations of both state and federal employment statutes.
Finally, there must be an emphasis, from the top down, to take responsibility for the company’s workplace culture. Remaining complacent exposes both companies and individuals to a disgruntled employee exclaiming “off with their heads!”
Article Courtesy of Fisher & Phillips
In the last ten years, we have seen the largest armed forces deployment since WWII. Soldiers have returned from Iraq, and thousands more are scheduled to return from Afghanistan over the course of 2013. It is expected that by the end of 2014, nearly 1.5 million will have returned from combat operations in those two countries alone. Many will apply for reemployment with physical or mental impairments that can oftentimes trigger a host of statutory obligations, varying from the Uniformed Services Employment and Reemployment Rights Act (USERRA) to the Americans with Disabilities Amendments Act (ADAAA).
It is essential to reconsider the legal and practical ramifications for reintegrating them into your workplace. Effective reintegration calls for a commitment from upper management, with an focus on appropriate training and education for supervisors and managers alike.
Any such program must start with a review of the legal obligations required by laws such as USERRA, which establishes rigid timetables for reemploying our returning reservists, veterans and other uniformed service members, along with the accommodation requirements imposed by the ADAAA. If you employ the spouse or close family relative of a returning veteran (as opposed to the veteran him or herself), the Family and Medical Leave Act (FMLA) may also apply.
USERRA is the primary federal statute governing the reemployment rights of returning veterans. Returning employees need to only submit a timely reemployment application (typically within 14 or 90 days, depending on their length of service) and otherwise establish that they were discharged from duty under honorable circumstances.
Upon receipt of the application, an employer must reinstate uniformed service members (typically within two weeks) to the position they would have held if they had never taken military leave (their “escalator” position) in the first place. Before you decide whether or not they are qualified to return to their escalator position, you must provide refresher as well as any other training that would have been furnished during their leave of absence.
Exemptions from this reemployment obligation are few and far between. An example would be where the circumstances have changed so significantly, such as an intervening reduction in force, that reemployment would be impossible or unreasonable under the circumstances. Following reemployment, the returning veteran can only be terminated “for just cause” for 180 days (if their deployment was for more than 30 but less than 180 days), or for one year following reemployment (if the length of deployment exceeded 180 days). USERRA also restricts employers from discriminating against employees on the basis of military service, or from retaliating against those who pursue enforcement assistance.
The FMLA was recently revised to provide both “military caregiver” and “qualifying exigency” leave to close family members (i.e., the spouse, child, parent or “next of kin”) of covered servicemembers. Military caregiver leave allows eligible employees to take up to 26 workweeks of unpaid leave during a 12-month period to care for close family members who have sustained serious injuries or illnesses in the line of active duty. FMLA also allows eligible employees to take up to 12 workweeks of qualifying exigency leave each year to tend to certain “exigencies” (i.e. attending military ceremonies, arranging for alternative childcare arrangements, etc.) brought about by their close family member’s federal active duty commitment.
In other words, FMLA applies only in those circumstances where your employee is affected by virtue of their relationship to a uniformed servicemember. When the employee actually is a uniformed servicemember, USERRA will outline your legal rights and obligations.
USERRA outlines a bottomline for employer’s legal responsibilities to returning veterans. You may also be operating under additional obligations imposed by laws such as the ADAAA (and any state law counterparts). The ADAAA prohibits employers from discriminating against qualified employees who are known, regarded as, or have a history of being disabled.
Full compliance with USERRA will not eliminate the need for additional obligations in the form of reasonable accommodation for any known, service-connected physical or mental impairments that significantly restrict the ability to perform one or more major life activities.
Excluding undue hardship, employers must provide reasonable accommodation to disabled veterans to aid them in performing the essential functions of their pre-duty positions, and to allow them to enjoy equivalent benefits and privileges of employment (including access to sponsored training programs, break areas, social events, etc.).
With recent amendments widening the extent of the term, “disability,” the ADAAA has cast a wide net around this concept, covering millions of Americans in statutory protection. As a result, it is more important than ever to properly engage in the process with regard to service-connected injuries such as mobility, cognitive, sensory, and psychiatric impairments.
Unique Challenges Presented By Mental Impairments
Around 25% of all veterans serving in the middle east conflict have returned home from active duty with physical disabilities. Due to the nature of the conflict, nearly 20% of them are returning with diagnoses consistent with Post-Traumatic Stress Disorder (PTSD) or depression as well as traumatic brain injuries.
It is also fair to assume that a significant number of veterans are returning with symptoms that have yet to be formally diagnosed, perhaps due to an unwillingness to acknowledge or disclose the disorder. While most will return fit to immediately undertake the essential functions of their positions, others may require a period of adjustment that calls for a gradual reintegration.
Public Resources Are Available
A number of public resources are available to assist in the readjustment process, including the ESGR, a federal ombudsman service devoted to Employer Support for the Guard and Reserve, the Disability Management Employer Coalition, the Veterans Administration, and a host of private third-party programs. The Society for Human Resource Management has even recently partnered with the U.S. Army to provide additional resources to facilitate the reemployment process.
The ADAAA suggests evaluating each reintegration on a case-by-case basis when it comes to accommodating returning veterans and other disabled employees. Accommodating for those afflicted with impairments such as PTSD can often be implemented for a relatively small expense. However, in other cases, enhanced supervisory training may be required to help ensure that the return-to-work transition is a smooth one.
Every veteran who returns for reemployment potentially triggers a broad range of practical and legal factors, and every situation must be evaluated on a case-by-case basis. In many cases, challenging obstacles await those who encounter these considerations. But with a sufficient amount of investment in planning, supervisory training and legal analysis, there are rewards for employers and employees alike.